This article first appeared in the December 16,
2013, issue of the National Law Journal’s Supreme Court Brief.
Laughter can
be serious business at the U.S. Supreme Court, especially on the First Monday
in October.
As the new term
opened this fall, laughter disappeared from argument transcripts and a mild rumpus
ensued on social media. Laughter did make a comeback, but not without some unanswered
questions.
“When you
read Supreme Court argument transcripts,” Justice Elena Kagan
explained to a group of Harvard Law School students in September, “they
actually tell you when there’s laughter in the Court” and which justice triggered
it.
Jay Wexler, a
former clerk to Justice Ruth Bader Ginsburg and now a professor at Boston
University School of Law, publishes updated laughter counts for each justice at
his @SCOTUShumor Twitter feed,
along with commentary.
“Ten o’clock,”
Wexler tweeted on Monday, October 7. “I guess #SCOTUS has started up. I can
feel the laughter coursing through the countryside. If you’re very still, you
can too.”
Kimberly
Atkins, who also follows Supreme Court laughter, was in the courtroom. From her
@DCDicta Twitter feed that morning,
Atkins reported that Chief Justice John Roberts, as well as Justices Antonin Scalia,
Stephen Breyer, and Samuel Alito had all gotten laughs.
Problem is, when
the transcripts went online later that day, the laughter was missing.
Twitter
noticed.
Both Wexler
and Atkins tweeted about the A.W.O.L. laughter, and Atkins reiterated: “I heard
laughs w my own ears. But if it isn’t in the transcript, is it like a tree
falling in a forest?”
Other Twitter
users, including myself, joined the discussion through comments and retweets.
Laughter at the Supreme Court has a following. To some, it is like box scores,
fun to track. To others, it is a digestive aid that helps dull transcripts go
down. It is even fodder for scholars, since laughter gives insight into
justices’ personalities and Supreme Court dynamics.
Wexler
wondered if “they’ve stopped making the notation. Several possible laugh lines
in the transcript.”
Not only was
the term new that day, but so was the Clerk of the Court, Scott Harris. His predecessor,
William Suter, retired over the summer after more than two decades in the
position. Had a new, laughter-free day dawned at the Supreme Court?
That
afternoon, I contacted Alderson Reporting, which prepares the transcripts. A company
representative indicated by telephone the next day that there was not a new
policy; however, he did not explain the laughter void. (Responding to a later
inquiry for this story, the Supreme Court’s Public Information Office said: “We
don’t know why the omission occurred.”)
“Laughtergate
deepens,” Atkins tweeted.
The good news
is that laughtergate was mostly short-lived. The next day, laughter showed up in
a new transcript. The First Monday transcripts remained somber, though. During
the next week, I checked for updates several times. Still no laughter.
Another check
in early December revealed that the laughter was back: one laugh each for four
justices on the term’s first day, consistent with Atkins’ tweet.
When the
laughter returned is fuzzy. Neither Alderson nor the Public Information Office provided
an exact date. The office did say that Alderson initiated and made the changes
as part of its review process.
So, where do the
numbers stand now?
After the
“laughtergate fix,” as Wexler called it, he tweeted updated numbers for the
term, current through the December sitting. Scalia leads with twenty-two
laughs; Breyer is not far behind with twenty. Ginsburg and the famously silent Justice
Clarence Thomas are tied for last with zero.
“I check sometimes,”
Kagan
told the Harvard Law students, with a slight grin, speaking of the laughter
tallies.
For more justices’
comments on the subject, see Wexler’s collection
at his website.
